R (on the application of Sandiford) v The Secretary of State for Foreign and Commonwealth Affairs

JurisdictionEngland & Wales
JudgeLord Clarke,Lord Carnwath,Lord Toulson,Lord Mance,Lord Sumption
Judgment Date16 July 2014
Neutral Citation[2014] UKSC 44
Date16 July 2014
CourtSupreme Court

[2014] UKSC 44

THE SUPREME COURT

Trinity Term

On appeal from: [2013] EWCA Civ 581

before

Lord Mance

Lord Clarke

Lord Sumption

Lord Carnwath

Lord Toulson

R (on the application of Sandiford)
(Appellant)
and
The Secretary of State for Foreign and Commonwealth Affairs
(Respondent)

Appellant

Aidan O'Neill QC Adam Straw (Instructed by Leigh Day & Co)

Respondent

Martin Chamberlain QC Malcolm Birdling (Instructed by Treasury Solicitor)

Heard on 4 June 2014

Lord Carnwath AND Lord Mance (with whom Lord Clarke and Lord Toulson agree)

Introduction
1

The appellant, a British national now 57, is in prison in Bali, Indonesia, awaiting execution by firing squad, following her conviction for drug offences. That follows her arrest in May 2012 and her subsequent trial on 22 January 2013 in the District Court of Denpasar. She had admitted the offences, but claimed that she had been coerced by threats to her son's life. Following her arrest she had co-operated with the police, leading to the arrest of four others. The prosecutor had called for a sentence of 15 years' imprisonment, and supported her appeal to the Indonesian High Court. But that was unsuccessful, as was her further appeal to the Supreme Court on 29 August 2013. The only legal options now available to her to avoid execution are an application to the Supreme Court to reopen the case, and an application to the President for clemency. The time-limit for both expires on 29 August 2014. She needs legal help to prepare her case.

2

The UK government has provided substantial consular assistance since it was notified of her arrest, has made diplomatic representations to the Indonesian authorities, and submitted amicus briefs to the High Court and Supreme Court in support of her appeals. But it has declined to pay for legal help, relying on what was said to be a rigid policy, as stated in its publication Support for British Nationals Abroad: a Guide (first published in June 2007):

"Although we cannot give legal advice, start legal proceedings, or investigate a crime, we can offer basic information about the local legal system, including whether a legal aid scheme is available. We can give you a list of local interpreters and local lawyers if you want, although we cannot pay for either." (emphasis added)

The central issue in this case is the legality of that approach, either under domestic law, or (if it applies to her case) the European Convention on Human Rights.

The course of the proceedings in UK and Indonesia
3

The present proceedings sought an order requiring the Secretary of State to make arrangements for an adequate lawyer to represent her in the Indonesian appeal. They proceeded with remarkable and commendable urgency. They were lodged on 24 January 2013, only two days after her conviction. The urgency was dictated by the need for her notice of appeal to the Denpasar High Court to be lodged within seven days, and grounds 14 days thereafter. A "rolled-up" hearing took place on 31 January, when the Divisional Court (Gloster and Nicola Davies JJ) granted permission but refused the substantive application, for reasons given in a judgment on 4 February [2013] EWHC 168 (Admin).

4

The applicant's grounds had complained of inadequate legal assistance before and at the trial. She had been represented by a local lawyer, paid with funds (£5,000) raised by her sister, but who (according to her) spoke little English and had no experience of capital defence litigation. Following her conviction, and by the time of the judicial review application, the consulate had put her in touch with Mr Agus, a local lawyer. He was the British Ambassador's honorary legal adviser and was also a human rights specialist, who had acted in previous death penalty cases. He was willing to act for the appellant on a pro bono basis, subject to payment of his expenses, estimated at some £2,600. Accordingly, it was that seemingly modest sum which was initially the subject of the judicial review proceedings.

5

In the event, following the dismissal of her application by the Divisional Court, the necessary sum was raised by donations from the public. Her appeal to the High Court in Indonesia then proceeded with the assistance of Mr Agus. On the issue of sentence it was supported by the prosecutor, and by amicus briefs submitted by Lord Macdonald and by the UK Government. On 10 April, the High Court of Denpasar dismissed the appeal.

6

In this country her appeal against the order of the Divisional Court was heard by the Court of Appeal on 22 April and judgment was given on 22 May 2013 dismissing the appeal: [2013] 1 WLR 2938. By that time her request was for £8,000 to instruct Mr Agus in the appeal to the Supreme Court (again principally for his expenses). The Court of Appeal noted that some of the money had by that time been raised by donations. In the event, the full sum was raised and the appeal proceeded in the Supreme Court with Mr Agus' assistance, but unfortunately was again unsuccessful.

7

We have had the advantage of more detail than the lower courts about the course of proceedings in the lower courts. We were told that translations of the District Court and High Court judgments only became available in March 2014. As will be seen, even allowing for problems of translation, they make very disturbing reading.

8

We have also some further evidence on the appellant's side, including information as to the legal options now open to the appellant in Indonesia and their consequences, and also of the practice of other countries in providing funding in comparable cases. We have not seen evidence of any more recent consideration of the case by the Secretary of State. Nor is there before us any ground of challenge based on action or inaction since the Court of Appeal hearing. The appeal to this court has proceeded as one of principle, directed to the legality of the policy and its application in relation to the decision to refuse funding in January 2013. While however we are principally concerned with the legality of the decision made at that time, and the policy on which it was based, there is as we understand it no objection to us taking account of the new material in so far as it assists in resolving those questions.

The Indonesian proceedings in more detail
9

The District Court judgment recorded that she had been accompanied by a lawyer and a translator, and that she had been able to understand the proceedings and respond to questions put to her. It also summarised her statement to the court. She admitted her knowledge that she was carrying narcotics, but said that they belonged to a Julian Ponder (a member of a syndicate), who had threatened to kill her child if she did not comply, and that she felt "very bad and ashamed". The judgment noted that the prosecutor was seeking a sentence of 15 years imprisonment and a substantial fine, and that her lawyers had filed a plea "for the lightest sentence by reason that she committed the deeds not on her own accord but solely under the threats of the other party". The court, however, held that it was "just and fitting" that the maximum sentence be imposed. It rejected the prosecution's submission that there were no aggravating circumstances. Instead it found no mitigating circumstances. Rather it listed five "aggravating circumstances", including her making of "complicated statements" to the court, her lack of remorse, and her "resort to continued excuse for her ailing son, making herself subject to Julian's threat into committing the deeds".

10

A fully reasoned notice of appeal to the High Court was prepared by Mr Agus. This repeated her claim that she had been forced to commit the crime because of threats to her son by a narcotics syndicate. It also relied, by way of mitigation, on the facts that she had no previous criminal record and suffered from mental illness; that following her arrest she had co-operated with the police in a "sting operation" which had led to the arrest of four members of the syndicate (including Mr Ponder); that they had been convicted and sentenced only to terms of imprisonment of between one and six years; and that her attempts at trial to read a full statement of apology had been interrupted by flash photography at short distance from photographers in court. The district court had failed to consider her mitigating factors, especially her role as a collaborator with the police, and the sentence was unjust and disproportionate.

11

The appeal was supported by a substantial amicus brief (14 pages) on behalf of the UK government. This relied on a decision of the Indonesian Constitutional Court (Decision No. 2–3/PUU-V/2007), which had upheld the permissibility of the death penalty for drug offences, but only "in special or exceptional cases", and taking account of any mitigating circumstances. The appellant's case came "nowhere near" that category. The mitigating circumstances included her co-operation with the police, her previous good character, her remorse, and the circumstances in which she came to be involved. A further substantial amicus brief (20 pages) was submitted by Lord Macdonald QC (formerly Director of Public Prosecutions) in his own name. He gave particular emphasis to the appellant's "status as a cooperating witness", having regard to the vital role of such witnesses in combating the drug trade, and the need for leniency in sentencing as an incentive to such co-operation.

12

The court dismissed the appeal and confirmed the death penalty. With respect to the court, their treatment of the defendant's case seems cursory in the extreme. The judgment noted, without further discussion, that the prosecutor had objected to the death penalty, and that a brief had been submitted by Lord Macdonald QC, but there was no mention of submissions of the UK Government. The court described the appellant's action as "highly systematic and...

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